But Justices Limit Action to Claim That Missrepresentation Was
Used to Obtain Private Data

By KENNETH OFGANG, Staff
Writer

A woman who was the
subject of a child abuse study more than 20 years ago may sue a prominent
psychologist who has criticized the study and questioned the accuracy of the
plaintiff’s account of what transpired, the California Supreme Court ruled
yesterday.

The justices, however,
limited the action against Dr. Elizabeth Loftus to a single cause of action for
invasion of privacy, based on the claim that Loftus and an investigator working
for her misrepresented her relationship with the psychologist who treated the
plaintiff in order to obtain confidential information.

A five-justice majority
rejected several claims by the plaintiff, including the allegation that Loftus
defamed Nicole Taus by saying she had engaged in unspecified “destructive
behavior.” Taus alleged that the statement, combined with the disclosure that
she was serving in the Navy—her true name was never publicly disclosed before
she filed suit—falsely suggested that she was unfit for military service.

Two justices partially
dissented, saying that all of Taus’ claims should be thrown out.

Eyewitness
Identifications

Loftus is a professor at
UC Irvine. Her work over the past three decades, described as both
groundbreaking and controversial, has largely focused on the accuracy of
memory.

Lofftus has testified as
an expert in more than 250 cases. While her early work dealt largely with the
inaccuracy of eyewitness identifications, in more recent years she has
questioned the claims of many of her colleagues to be able to revive patients’
long-suppressed memories of traumatic events.

The professor told a
reporter in 2004 that she bought a gun and took up target shooting as a result
of death threats related to the publication of her 1994 book The Myth of
Repressed Memory.

The suit ruled on
yesterday consider concerns articles published and statements made between May
1997 and August 2002.

As a child, Taus was the
subject of a child custody battle in which her father—who won full
custody—claimed that she had been abused, sexually and otherwise, by her
mother.

In May 1997, an article
was published in Child Maltreatment, the journal of the American Professional
Society on the Abuse of Children.

One of the authors, Dr.
David Corwin, said that a 6-year-old then involved in a custody dispute—she was
identified as Jane Doe in the article—had reported to him in 1984 that she was
abused by her mother. She subsequently lost all memory of that disclosure,
Corwin said, and spontaneously recovered the memory during an interview 11
years later.

Corwin had concluded,
and testified, that Jane Doe was abused by her mother and that the mother’s
allegations that her father had abused Jane and coerced her into accusing her
mother were false. In 1995, when Jane was 17 years old, she agreed to be
re-interviewed by Corwin and to allow him to use the 1984 interview tapes for
“professional education.”

Corwin and his co-author
insisted that Jane Doe had recovered her memories of the earlier abuse and that
while there were possible inconsistencies between what she said in 1984 and
what she recalled 11 years later, the “core recollection” was consistent with
the original statements.

In 2002, however, Loftus
and a colleague, Dr. Melvin Guyer of the University of Michigan, authored a
two-part article that appeared in the Skeptical Inquirer, a magazine published
by the Committee for the Scientific Investigation of the Claims of the
Paranormal.

Anti-SLAPPMotion

Loftus and Guyer titled
their article Who Abused Jane Doe? The Hazards of the Single Case History.
Based in part on interviews with key players in the events—including Jane Doe’s
mother and stepmother, who Loftus said probably played a role in the alleged
memory recovery—the authors concluded that the abuse had never occurred, and
that the memories were entirely false.

In 2003, Taus sued
Loftus, Guyer and others, making public for the first time the fact that she
was the Jane Doe referred to in the earlier articles, along with the identities
of her parents and other information about herself.

She accused Loftus of
infliction of emotional distress, invasion of privacy, fraud, and defamation.

The defendants moved to
strike Taus’ claims under the anti-SLAPP statute. With respect to Loftus,
Solano Superior Court Judge James Moelk struck the fraud claim but allowed the
causes of action for infliction of emotional distress, invasion of privacy, and
defamation to stand.

The Court of Appeal
affirmed in part and reversed in part. It struck the claim for infliction of
emotional distress, but said Taus was sufficiently likely to prove invasion of
privacy and defamation to survive the anti-SLAPP motion.

But Chief Justice Ronald
M. George said the only viable claim was that Loftus and the detective agency
she hired, Shapiro Investigations, tricked the plaintiff’s former foster mother
into disclosing details about Taus’ youth, including involvement with sex and
drugs. The woman would not have made such statements, the plaintiff claimed,
had she not been falsely told that Loftus was working with Corwin.

While the relevant facts
are in dispute, the chief justice explained, that conflict cannot be resolved
on an anti-SLAPP motion because all the plaintiff needed to do was establish a
prima facie case.

“[W]e believe a jury
could find that plaintiff reasonably expected that an investigator would not
seek and obtain access to such personal information about her from a relative
or friend by falsely posing as an associate or supervisor of a mental health
professional in whom plaintiff had confided,” the chief justice wrote.

George agreed with the
Court of Appeal that Loftus’ article and related public statements were
protected to the extent they related to the public controversy generated by the
Corwin article.

But he parted company
with the lower courts by saying that Taus cannot sue over the “destructive
behavior” comments, which he said were made to fellow professionals and were
thus protected by the common-interest privilege codified at Civil Code Sec.
47(c)(1).

Nor, George wrote, can Taus
claim that Loftus invaded her privacy by identifying her by initials at a
deposition in an unrelated case. That deposition, the chief justice noted, did
not occur until after Taus had filed her original complaint, under her full
name.

George was joined by
Justices Joyce L. Kennard, Kathryn M. Werdegar, Ming Chin, and Carol Corrigan.

Justice Carlos Moreno,
joined by Justice Marvin Baxter, argued in a separate opinion that Taus should
not be allowed to sue for intrusion on her privacy because had no reasonable
expectation that her foster mother would keep her observations of Taus’
behavior private.

Taus’ preference that
her foster mother discuss her behavior only with “an investigator who held
certain agreeable views,” Moreno wrote, “that preference could not be called an
expectation of privacy, and the enforcement of that preference through tort law
is antithetical to free academic inquiry.”